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Primer: Maine gun confiscation “Red Flag” bill to bring hundreds to Augusta this week

Left, former New York Mayor and billionaire Michael Bloomberg who is bankrolling one of the gun control groups advocating for the latest “Red Flag” bill in Maine. Right, Senator Rebecca Millett (D – Cumberland), the primary sponsor of L.D. 1312.

AUGUSTA – On Monday, gun rights supporters will converge on Augusta to stand in opposition to supporters of a proposal that would allow guns to be seized from Maine citizens under a “Red Flag” gun confiscation proposal at a public hearing before the Maine Legislature’s Judiciary Committee.

The hearing promises to be a defining moment for this Maine Legislative session, and perhaps for Maine’s strong history of gun rights and gun ownership. It will place Maine’s strong constitutional gun rights, due process and property rights protections against a well-funded, well-organized gun control group that has a state legislature more friendly to their cause than at any time in recent memory.

Supporters of the “Red Flag” gun confiscation proposal say they want to protect the public from the dangers of firearms, but that has traditionally been a tough to impossible sale in the Maine Legislature or to Maine’s voting public.

Maine’s extremely high gun ownership rate (some estimates peg the number at about 40% of Mainers owning a gun, but it is likely higher), combined with extremely low violent crime rate (In 2016, Maine had the lowest violent crime rate in the nation and only 12 homicides of any type) are generally a source of pride among Maine people.

In 2015 while most of the nation was staring down the barrel of anti-gun laws, Maine passed a Constitutional Carry bill, eliminating the requirement for law-abiding citizens to acquire a government permit to carry a concealed firearm.

Gun control advocates at that time were forecasting dangerous times ahead for Maine under that change, but instead, the peace continued and Maine saw murder and nonnegligent manslaughters decline by about 13% to a total of just 20 in the entire state in the year 2016.

In 1987, the year the Brady Law, perhaps the most well-known gun control legislation in American history was first introduced, Maine passed what may be the strongest language in a state constitution in the nation. That language, enshrined in Article 1, Section 16 of the Maine Constitution says that “Every citizen has a right to keep and bear arms and this right shall never be questioned.”

The amendment, lauded to this day by gun rights supporters, was passed with bipartisan support in the Maine Legislature and approved by a majority vote in a statewide referendum.

Read Also: In 1987 Mainers voted for stronger gun rights language than the founding fathers

But what is on the agenda in 2019? Well, the legislation that will have a public hearing on Monday basically aims to seize guns from people that others say could be dangerous to themselves or others.

It creates a process through which someone who knows an individual can file a petition in a special judicial process force that individual to surrender their firearms or have a search warrant issued for law enforcement to seize them.

Individuals eligible to file a petition against an individual to seek the confiscation of that individual’s guns include a spouse, former spouse, immediate family or household member or person(s) who know the individual by consanguinity (a descendant) or affinity (related by marriage).

Opponents of the bill argue that the proposal is dangerous for law-abiding gun owners in that a disgruntled in-law or spurned former spouse or lover can unilaterally file a petition to have an individual’s guns confiscated.

They also argue that the process itself is a violation of Section 6-A of Article 1 of the Maine Constitution and several amendments of the United States Constitution, along with Maine’s Constitutional right to keep and bear arms.

Maine Constitution, Article 1, Section 6-A
Discrimination against persons prohibited. No person shall be deprived of life, liberty or property without due process of law, nor be denied the equal protection of the laws, nor be denied the enjoyment of that person’s civil rights or be discriminated against in the exercise thereof.

Maine Constitution, Article 1, Section 16
“Every citizen has a right to keep and bear arms and this right shall never be questioned.”

United States Constitution, Amendment IV
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

United States Constitution, Amendment V
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

United States Constitution, Amendment XIV, Section 1
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Supporters, attempting to counter that argument, say that this process of seeking the confiscation of another person’s guns provides ample due process by putting the matter before a court of law and providing a pathway for an individual to restore their gun rights after the confiscation.

Opponents argue that putting the matter before the court in what amounts to a secret proceeding without providing the individual subject to confiscation of their property an opportunity to defend their rights is not due process at all.

Examination of the language in L.D. 1312 shows that the bill would not require the petitioner or a single witness to appear before the court to make their case for the confiscation of the individual’s guns, saying, “In lieu of examining the petitioner and any witness, the court may accept sworn affidavits of the petitioner and any witness.”

Once a confiscation order has been approved by the court, the individual subject to the confiscation order, now legally termed a “restrained individual”, is subject to confiscation of their firearms either through their own voluntary surrender or a search warrant executed by law enforcement.

The court may issue a temporary order, which has a term of 14 days, or an extended order, which has a term of one year but is subject to extension by a similar process as the original petition.

In 2018, a Maryland man was shot in the early hours of a November morning when two police officers attempted to serve a “red flag” gun confiscation order. No information was provided at the time of the shooting as to who filed the protection order request for the man’s gun to be confiscated, with the court citing confidentiality of the request as the reason.

A group that advocates gun control measures, Moms Demand Action, which is part of New York Mayor Michael Bloomberg’s $50 million gun control push, issued a press release in March on the legislation.

 “The Red Flag legislation introduced today can prevent tragedies like the one that affected our family,” said Paula Reed, volunteer with the Maine chapter of Moms Demand Action for Gun Sense in America whose father died in 1991 as a result of injuries he sustained in a 1981 workplace shooting. “We are grateful to Senator Millett for championing this crucial gun safety legislation.”

Senator Rebecca Millett, the primary sponsor of the bill, wrote in an Op-Ed in the Portland Press Herald that, “This bill would give family members and law enforcement officers a pathway to help a person who is in imminent danger of hurting themselves or others, but also protects that person’s right to due process.”

Opponents of the bill argue that the process laid out in the proposal presents several violations of the constitutional rights of gun owners, will have a chilling affect on gun owners and that the dangerous process of confiscating guns from law-abiding individuals with no warning all make the bill a non-starter.

The Free Maine Campaign, a group founded by former State Senator Eric Brakey, is running an online petition to collect signatures in opposition to the bill, saying, “You don’t get to defend yourself in court or even see what you’re accused of. All that has to happen is someone complains about you!”

“It is already happening in California, Maryland (where a terrified gun owner was shot dead at home just after 5 am) and a few other extreme anti-gun states. But now politicians right here in our state are in a rush to make it a MAINE law,” says Hon. Eric Brakey.

Gun Owners of Maine, a non-partisan, all-volunteer grassroots organization that has been a powerful voice for gun owners in recent years, calls the bill “extremely dangerous” and says it grants police the “power to confiscate an individual’s firearms based on unsubstantiated allegations, and without affording the person any prior notice or opportunity to face their accuser or defend themselves.”

“This bill would strip all meaningful due process away from gun owners, and leave the door wide open to abuse,” said a bulletin from Gun Owners of Maine.

The Sportsman’s Alliance of Maine also opposes the current bill, focusing on the rights of individuals under the United States Constitution, focusing on how the bill would suspend the rights protected under the Fourth, Fifth and Fourteenth Amendments to take away an individual’s Second Amendment rights.

SAM also takes issue with the secret hearing process, best explained in a piece from executive director David Trahan and published on the Sportsman’s Alliance of Maine website.

“In the case of red flag laws, these rights are suspended to allow family, broadly defined in Maine law to include ex-lovers, to petition the court, ex parte, without your knowledge and without the suspicion of a crime being committed,” writes Trahan.

The petitioner is allowed to present their arguments to a judge, who then, based upon those arguments, decide whether the state can forcibly remove privately and legally owned property — in this case, firearms — from that person’s possession.

In essence, the Legislature is asking judges to act as clairvoyants — someone who claims to be able to predict the future.”

The National Rifle Association has also weighed in, sharing concerns put forward by others and adding, “Further, because there’s no limit to the number of order renewals, a respondent could face a potential lifetime ban on firearm ownership without any criminal convictions ever occurring.”

Hundreds are expected to attend rallies in advance of the public hearing on Monday April 22, with many testifying before the Legislature’s Judiciary Committee in State House Room 438 beginning at 9 AM.

The bill, L.D. 1312, is sponsored by Senator Rebecca Millett (D – Cumberland) and has ten cosponsors:

Representative Donna Bailey (D – Saco)
Representative Barbara Cardone (D – Bangor)
Senator Everett Carson (D – Cumberland)
Speaker Sara Gideon ( D – Freeport)
Senator Geoffrey Gratwick (D – Penobscot)
Representative Thom Harnett (D – Gardiner)
Representative Patricia Hymanson (D – York)
Representative Joyce McCreight (D – Harpswell)
Senator David Miraman (D – Knox)
Representative Lois Reckitt (D – South Portland)

A previous attempt to pass similar legislation was vetoed by Governor Paul LePage after compromise language was added to win support in the Maine Legislature.

You can read the text of the proposed “Red Flag” gun confiscation bill by clicking here.

You can find the members of the Legislature’s Judiciary Committee by clicking here.

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